Archive for the 'Bar Discipline' Category

The Pillory and Stocks – a common form of public shaming punishment until the 1800s.

When attorneys commit an ethical violation, there are various forms of discipline, from a non-public letter of admonishment to disbarment. One form of discipline is a public reprimand, which is performed in open court.

With the growth of social media, a misstep in one’s private life, from an off color joke to an embarrassing picture, can become a public shaming event all over the world.

The article takes a needed sympathetic view towards some that have been financially, socially and emotionally ruined by social media shaming. Everything from privately shared off-color jokes, publically shared comments, miscalculated judgments, questionable Halloween costumes, to, in some case, really nothing much at all, have become the target of social media outrage.

A judge in Arkansas offers as an alternative to jail the public shaming of wearing a sign.

As someone who represents attorneys, the analogous situation is the public reprimand. As someone who represents people who take their public image and professional reputation seriously, I can say with confidence that the public reprimand has a significant deterrent effect and is a feared outcome of the grievance process for most attorneys.

Mr. Ronson’s story also has a fascinating discussion of the history of public shaming as a form of criminal punishment.

Typically when an attorney breaches a duty of confidentiality to a client, the downside to the client is embarrassment and a loss of money. The downside to the attorney is bar discipline and civil liability.

In a case out of Maryland, however, it is alleged that the breach of trust and revealing of information lead to the hired murder of the client.

As reported at The Legal Profession Blog and picked up by the ABA, a Maryland attorney learned that his client was being investigated about a mail and bank fraud scheme. Although there appears to be some disagreement about some of the facts, it is undisputed that the attorney spoke to one of the co-conspirators about the investigation.

The client’s family claims that these communications were without authorization and informed the co-conspirator that the police were interested in getting the attorney’s client to cooperate with the investigation. The co-conspirator then hired someone to kill the attorney’s client.

Andrew Dwyer is an attorney at the aptly named The Dwyer Law Firm, LLC, in New Jersey. Mr. Dwyer had represented many employment litigation plaintiffs over the years, and as a result, had made several application to have his fees paid. As a result, Judges had written many nice things about Mr. Dwyer and his legal abilities in various orders.

The NJSBACAA, not to be confused with the OWCA (Organization Without A Cool Acronym).

Mr. Dwyer decided to quote some of these nice comments about himself and his work and post them on his website. Apparently, a judge that had written one of the comments became uncomfortable with the quote and asked that it be taken down. When Mr. Dwyer refused, the issue came to the attention of the New Jersey State Bar Associations Committee on Attorney Advertising. The NJSBACAA (certainly not a cool acronym) promulgated “Guideline 3,” which provided that an attorney “may not include, on a website or other advertisement, a quotation or excerpt from a court decision (oral or written) about the attorney’s abilities or legal services.” An attorney was permitted to post the text of an entire judicial order or opinion.

Just before it became effective, Dwyer challenged Guideline 3 in Court. He lost at the trial level, but the United State Court of Appeals for the 3rd Circuit reversed and held that Guideline 3 was unconstitutionally burdensome on Dwyer’s ability to advertise with accurate excerpts from judicial opinions.

For his part, Dwyer is pleased. “I’m obviously very gratified by the 3rd Circuit’s decision,” he says. “I thought the appeals court engaged in a conventional First Amendment analysis. There was not a shred of evidence that this rule was about protecting consumers from harm. Instead, this rule was about protecting the sensibilities of judges.”

Dwyer says he plans on putting quotes about himself from judicial opinions back on his website, but “we are waiting on the trial court to issue the order implementing the mandate from the 3rd Circuit and waiting to see if the state files a petition for writ of certiorari to the U.S. Supreme Court.”

Georgia probably does not have anything as restrictive as Guideline 3, but it does have a number of rules that attorneys should be aware of before advertising their services. Not all of these rules are intuitive, and not all of them are focused on avoiding “misleading” advertising, though that is justification for each restriction or required disclosure.

Thus, it is important for every attorney that advertises in some way, including with a firm website, review the relevant rules. The primary rules covering attorney advertising are covered in Georgia’s Rules of Professional Responsibility, Rule 7.2 and its comments.

I have assisted attorney in structuring advertisements and defended bar complaints with respect to these rules. A word of advise — should you call upon the State Bar of Georgia’s ethics hotline for guidance, and you rely upon that guidance, always make sure to document the Bar’s recommendation in writing in some way. The best way may be to send an mail to the person you spoke to. The Bar gives very few formal advisory opinions each year. So the Bar will not likely give you the advice in writing. If you know the name of the person you spoke to, send that person an e-mail summarizing the conversation. Then keep that e-mail for your records. At the very least, make a memo of the conversation for your records.

I have seen situations where the attorney claimed his advertisement was consistent with what he was told in a phone call to the Bar, but the Bar later determined that it was not. With no record of the conversation, the Bar was unwilling to find that its representative gave incorrect advice on the ethics hotline. Without a written record, that position is not surprising.

An attorney that was found guilty of participating in a mortgage fraud scheme was disbarred by the Supreme Court. While the result was not surprising, the opinion is valuable in that the Court discussed various mitigating and aggravating factors while evaluating whether the criminal conviction should result in disbarment.

Mitigating and Aggravating Circumstances Are an Important Part of a Bar Defense

Among the factors favoring leniency were a lack of disciplinary history, good character and reputation (evidenced by various letters and character references), the wrongdoing was an isolated incident, he cooperated with the bar, he was involved in mentoring young people and lawyers, and he showed remorse.

Aggravating factors included selfish motive, wrong doing in the practice of law, wrong doing directed at a client, and experience in the practice of law.

The opinion supports focusing argument that addresses the factors recognized by the Supreme Court in mitigation and aggravation of penalties. Although felony convictions arising out of the practice of law are tough to overcome, this is an important strategy in closer cases.

In a new discipline case, the Georgia Supreme Court rejected the petition for voluntary discipline filed by an attorney accused of violating Rules 1.4 (communication) and 1.16(d) (termination of representation).

The attorney sought a review panel reprimand. The maximum penalty for the two violations of the attorney are public reprimand. Despite the slight difference in maximum penalties, and despite no objection from the State Bar of Georgia, the unanimous Supreme Court rejected the petition.

The Supreme Court cited the attorney’s two prior disciplinary penalties, an investigative panel reprimand and a letter of admonition. All of the Justices concurred.

More and more voluntary discipline petitions are being rejected by the Supreme Court, even in cases in which the State Bar is not opposing the proposed discipline. The trend, while not unanimous, remains that the Supreme Court is often seeking harsher penalties than the State Bar.

The Georgia Supreme Court followed the recommendation of the Special Master in a disciplinary case that involved client abandonment, failure to return an unearned fee, and false representations to the Bar. The only mitigating factor noted was a lack of prior disciplinary history. In aggravation, the attorney was involved in multiple violations, failed to follow the disciplinary procedural rules, failed to acknowledge the wrongness of her conduct, and had substantial experience in the practice of law.

Despite going down the Wrong Way, the attorney received “only” an 18 month suspension.

The recommended 18 month suspension included a condition that attorney receive a psychological analysis with an opinion that the attorney was competent to return to the practice of law prior to reinstatement.

While it is still expected that the Supreme Court would follow a Special Master’s recommendation, the Supreme Court has proven that it is no rubber stamp. The facts of this case could have supported a harsher discipline, but the Court provided leniency.

The attorney was preparing an irrevocable trust for a client’s father who was in a hospital outside the state of Georgia. The client went to the hospital and obtained the signature of the father, but it was not witnessed or notarized. Time was of the essence, and the client could not return to the hospital with the document in a timely manner. The attorney called the father on the phone with two witnesses and asked the father if he signed the irrevocable trust. The father confirmed that he signed the document. The attorney and the witnesses signed the document, and the attorney notarized the document.

The attorney petitioned for the discipline in question. He acknowledged the wrongdoing of the conduct, and noted that no one was defrauded nor was there any effort to defraud anyone.

The statute that primarily defines the duties of a notary is as follows:

§ 45-17-8. Powers and duties generally

(a) Notaries public shall have authority to:

(1) Witness or attest signature or execution of deeds and other written instruments;

…
(d) A notary public shall not execute a notarial certificate containing a statement known by the notary to be false nor perform any action with an intent to deceive or defraud.

(e) In performing any notarial act, a notary public shall confirm the identity of the document signer, oath taker, or affirmant based on personal knowledge or on satisfactory evidence.

The opinion does not state what about the attorney’s notarization of the document was deceptive. At least as to the issues raised in this statute, it would appear that the attorney confirmed the identity of the document signer “based on personal knowledge or on satisfactory evidence.” A notary power is a power of the state, and a Georgia notary is only permitted to notarize a signature in the state of Georgia. Thus, there would be deception to the extent that the notary seal implied that the signature was done in the state of Georgia. There does not appear to be a requirement that the notary actually witness the signature however.

In defending attorneys, our office has had to defend a number of law firms arising out of disputes related to notary public seals and allegations of forgery. While the statute appears to be more forgiving than many people may realize, it is wise to follow a strict procedure when notarizing documents, especially if you have any question about the authenticity of a signature.